Libel case in Europe illustrates the need for care

An Irish civil action for libel that has been running since 2004 is still some way from conclusion, but its central issue will be of interest to all owners of Internet message boards, and reinforces the need for discipline to avoid some posters going too far, and for the timeous removal of defamatory third party material.

The reports that the case was heard in the Irish High Court last month after two Irish bookies, Seamus Mulvaney and Ellen Martin, launched libel proceedings against The Sporting Exchange Ltd, parent group of Betfair. The duo claimed that members on Betfair's forum published defamatory comments about them.

Betfair argued that the 2003 Irish regulations implementing the 2001 European E-Commerce Directive, a law designed primarily to shield Internet Service Providers from liability arising from 3rd party content, protected it from the consequences of its forum users posting defamatory comments on its forums.

The High Court supported Betfair's defence - and this is important - despite a clause in the directive that excluded gambling activities from protection. In noting that the message board was not part of the cpompanys core betting activities, the judge in the case, Mr Justice Frank Clarke said: "It follows that the gambling exclusion does not prevent Betfair from placing reliance on the E-Commerce Directive as a defence in these proceedings."

The judge also found that a chat room was an ‘‘information society service’’ for the purpose of the regulations, so Betfair qualified as a ‘‘relevant service provider’’. Betfair was therefore entitled to the protection of the regulations, provided it could establish that it was unaware of the alleged defamation and took prompt action once the matter was brought to its attention.

Feidhlimidh Wrafter, one of Betfair's legal team, said after the decision was handed down: “That’s really what the judgment’s saying, that gambling companies that operate a chatroom are now considered to be protected by the EU directive. It’s on appeal but it’s certainly a judgment that we’re very pleased with and we think it’s the right one.”

The High Court judge hearing the case found that Betfair was an intermediary service provider and therefore had limited liability because its chatroom was not core to the company’s main betting business. Betfair stored third party information on its servers and could therefore be defined as acting as a host in terms of the E-Commerce Directive, Mr Justice Frank Clarke ruled.

The plaintiffs are taking the case on appeal, and the ruling must therefore be regarded as a preliminary measure that simply confirms that the E-Commerce directive is an acceptable defence. Betfair will still have to show that it was unaware of the chatroom comments, and that it acted with reasonable alacrity in removing the defamatory material as soon as it became aware of its existence.

The case is likely to run on for over a year, given the full rolls in the Supreme Court where the appeal has been lodged.

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